day's gallup tracking poll, the first to incorporate data after the debate showed a 1-point increase for mitt romney now with a stunning 7-point lead. just as surprising is the disappearance of a foundation piece of president obama's plan for victory, the gender gap. the president's once commanding lead with women voters has totally evaporated. a pew research poll released this month showed the president's lead with women voters disappeared losing what had been an 18-point margin in one month. the u.s. today gallup poll released monday showed similar results. that requires the question, what has mitt romney done to court the female vote? perhaps his binders of women are bigger than initially thought. maybe tying women's issues to the economy is paying off. >> romney: why is it there are 3.6 million more women in poverty today than when the president took office? this president has failed america's women. >> is there any plan for maybe women, jobs, any plan in place

for jobs specifically for women? >> get the economy growing number one. >> eliot: finish more on the president's eroding support by women, i'm joined by nancy keenan. thanks for joining us tonight. nancy, i've gotta ask you everybody knows the first stage of grief is denial. i don't want to suggest it but do you accept the fact that, in fact, the gender gap has disappear and that somehow we're in a new world in terms of how women are voting in this campaign? >> eliot, i don't. i think that the gallup poll is an outlier here. i think that quite conhest i the entire campaign has been about drawing the contrast between president obama who has stood with women the affordable care act whether it was lilly lilly ledbetter and a guy in mitt romney who believes women should be in binders and as though he doesn't even know some of the women he could bring to his cabinet. so i don't believe at the end of the day that gender gap that you're seeing a little bit of now is going to present itself

in the voting booth. i believe that women are going to vote for barack obama because they understand what's at stake. and they understand that their reproductive rights and the right to an abortion in this country is at stake. if mitt romney is elected. he's not telling the truth and he can't be trusted. >> eliot: okay. nancy, you made a very persuasive argument. every piece of which i wholeheartedly agree with but you didn't confront the problem which i'm trying to get my arms around which has at this moment -- you said at the end of the day the gender gap will ere-emerge. it would seem to be a series of polls that do show some substantial swing. the 18-point margin that the president had a couple of weeks ago, a month or two months ago seem to have been diminished dramatically. give me your theory about why that could be happening. because the case that you just made has been made persuasively by the president. by bill clinton by every surrogate for the president. what is happening out there? >> you know, eliot i think that

polls are going to swing a lot either way here in these last 19 days. and so again, i think there's outliers like the gallup poll is an outlier. i don't actually agree that it is that dramatically. i believe there are other issues people are looking at at this time and women around jobs and the economy, you bet. but when you finally get into that polling booth and women have to sort through who has the best economic plan, who has the best foreign policy plan and who is going to protect my freedom and my privacy? i think that ultimately, the vote is going to be for barack obama and they're going to see through all of this bogus rhetoric of mitt romney trying to be everything to everybody. >> eliot: i agree with you. we have been merciless in describing governor mitt romney, former governor as an etch-a-sketch candidate without a core or soul willing to take any position any time for any audience. saying that, has the surrogates for the president doing enough

to mention the words that resonate with me, the supreme court. has the issue of roe's potential reversal, the talking points since the convention, has it been permitted to fall off the map because there is a self-confidence that the gender gap would survive? >> eliot, i don't know if you remember but i don't remember ever when a presidential campaign was running ads in a battleground state on the issue of abortion. and we're seeing this president run those ads. as a positive, it is a first time that quite honestly, the democrats have been on the offense on the issue of reproductive choice and not on the defense. that, in fact, so much on the offense that the republicans are trying to get into the game. and i think that's why you are not seeing the kind of attacks and the raising up by the republicans about this issue. because they know it is a winning issue with women in this country. they know it is a winning issue for families and it is a winning issue forcandidates that stand -- for candidates that stand for reproductive rights and reproductive choice. >> eliot: i agree with you.

mitt romney has been as evasive and weak-kneed and lacking in spine on virtually every other issue moving across the spectrum faster than the speed of sound apparently but then you look at the missouri senate race. where todd akin's comments, most of us thought would have rendered him impossible as a candidate. how could he stand up in public having said -- that race is uncomfortably close even though we were hopeful claire mccaskill would win. what does that say about our ability to communicate on this issue and bring voters together around it? >> look, i think the country is divided on this issue. that's what you're seeing but you're also seeing the other side of the republican party having overstepped seriously overstepped. whether it was the issue around sandra fluke and her being called names whether it was the issue of coverage of birth control. that's why the american public says enough. they want it stopped. and so fundamentally here, elections do matter. i think that you will see these candidates pro-choice win across

this country. it reaffirms that the american public is pro-choice and they don't want politicians involved in this decision. so yes they're close. we knew those were going to be close races but at the end of the day i think the people will vote for their privacy and their freedom and reject these all-out attacks on women's reproductive rights. >> eliot: i simply hope you're right. only 19 days until we find out whether your thesis is correct and let's hope there is a loud, vocal and strong argument made precisely as you made it a few moments ago. it was perfect. nancy keenan, president of pro-choice america. thanks for joining us tonight. >> thanks, eliot. >> eliot: to dig deep near the poll numbers let's bring in anna greenberg and steven seigman, senior vice president of global strategy group as well as a professor at columbia university. thank you for joining us. anna since you're farther away, we'll start with you. as you heard me say to nancy the first stage of grief is denial.

there is a tendency among many partisans and democrats to say ah, those numbers don't mean -- what's the current state of the gender gap? >> well, of course the numbers are true. if you look at the share of the vote that obama got in 2008 among women he's not getting that right now. he hasn't been getting it for most of the year. over the course of august and september, and early october he started rebuilding his strength among women primarily because of republican missteps starting with todd akin's comments going into the republican convention and then finally the 47% video. and i think you know, in some ways, the lead that was built primarily on qualifying romney, it wasn't a surprise when he presented himself as somebody who was not serving -- he talked about the middle class said he had a plan for the economy. all voters, including women who had been softer for obama all year took notice. simply because obama's performance was obviously less than stellar. he didn't really display empathy or connection with women over their economic situation which

is quite different than men's economic situation or for that matter, talking about the other issues you've been talking about with nancy. i'm not that surprised. the gallup poll is definitely an outlier. there is a lively conversation about the problems of the gallup poll. most of the national polls have it tied with obama or romney up one. in most of the national polls that i've seen, including a ppp poll that came out today had women at about 51%. gender gap is not the margin of women voting for obama. it is difference in men and women and there still is a gender gap. sometimes it is a little smaller, sometimes a little bigger but women are always more democrat leaning than men are. that will be true in this vote as well. >> eliot: steve, let me turn to you. the disappearance of what had been an 18% marge and i think ann is correct. we have to be careful on how we define it. it has shrunk dramatically. what do we know about the women who have shifted? if it was an 18-point margin,

you still have a 6 or 7 point shift. do we know who they are educationally, geographically, income level and how you address their concerns? >> i think as i pointed out in the -- essentially the voters who have been identified all along as swing voters, not as strong for the president until end of august and september. and they've gone back to being not as strong for the president. that's why they're called swing voters. they're the so-called waitress moms, you know, the noncollege-educated, white. college-educated married who have always been more for romney than obama got stronger for him after the first debate. importantly, some of the numbers that you were referring to in the pew poll, et cetera are outliers, particularly in the swing states, didn't you see nearly the kind of erosion after the first debate. and you haven't really seen meaningful numbers arrive the second debate. a poll just came out tonight from the "wall street journal" and maris that has an 18-point gap between romney and obama in wisconsin which has returned the

president's lead. >> eliot: 18% among women. >> among women exactly. so you're seeing some of the gap returning as anna said. the bottom line is there's a gender gap. there's been a gender gap for more than 25 years. there will be a gender gap on november 6th. it will probably re-elect the president. >> eliot: to the extent there was erosion, it was among those and this is not only logic but driven by the data you've been examining, there was erosion among those voters who were innately less persuaded by president obama. lower income, lower educated, one segment and also what spouses, college educated. how are you going to address them? are they susceptible to an economic argument and how do you address them? >> part of the information is -- part of the problem is they're -- they know less about politics. they decide late. they're more influenced by what's happening now than what's happened for the last year. and there's volatility. more volatility than we've seen in previous elections. i think there's two things the

president can do. he's doing it. one is to get refocused on the middle class. refocused on the economic challenges that women face. particularly around issues like access to affordable and quality child care. equal pay. flextime though that's romney's only plank. he doesn't understand women care more about having enough money than flextime. that's one piece of it because women need to feel he understands the economic situation they're in. the second is a heavy focus which he is on how do republicans value women as a society? there is a narrative here that builds over the last two years starting with 1100 bills passed across states and then with defining planned parenthood and the like and that mitt romney won't take -- >> eliot: that case has been made by the democrats and i think persuasively and with persistence. that's why the sudden flip was troubling to people. as you say steven, these are low information voters. how do you make a closing argument because we're now into the moment of a closing argument for any campaign. what percentage of the female vote and what gender gap does the president need for his

models to work for him to succeed? >> i don't think i would put a specific number on them. you can look at historical models and look somewhere in the 8% to 10% range. the message that has to be delivered is a message of contrast. the message that was working in august and september is a message of contrast that this president is actually focused on the middle class. focused on protecting families and on middle class issues and things like child care and education and tax relief. and mitt romney isn't. as the president said, finally in the second debate he doesn't have a five-point economic plan. he has a one-point economic plan to favor the very wealthy. that's not who these voters are. >> eliot: we'll have to continue this. the data will continue to come in. more meaningful day by day as we measure not only the impact of the second debate but as we get closer to november 6th to see if the gender gap does reemerge and where it stabilizes. anna greenberg senior vice president. steven sigmund global strategy group. thank you both for your time tonight. >> thank you.

>> eliot: why some businessmen suggested to their employees for whom they should vote. perhaps mitt romney asked them to. that's ahead.

>> eliot: i have to respect new york mayor michael bloomberg for putting his money where his mouth is even when i don't think he's being completely realistic. $10 to $15 million is how much bloomberg plans to spend this election through his own super pac which he calls independence u.s.a. rather than backing democrats or republicans, the mayor who is a declared independent said he will promote state local and congressional candidates of any party. his support will be based on three issues near to his heart. legalizing same-sex marriage enacting tougher gun laws and overhauling schools. it sounds great on paper but there are reasons why parties exist. it is hard to compete with the power and permanence of national party affiliation. for example, have you ever heard of a group called no labels? you probably have not.

that's the point. an alliance of republicans democrats and independents who want to reward politicians for bipartisanship. a great idea but after starting up in late 2010, no labels has become nearly invisible. we'll wait and see how long bloomberg's pact remains truly nonpartisan. let's face it. when it comes to gun laws, same-sex marriage, and effective school reform, he'll mainly find himself backing democrats and independents anyway. that is a whole bunch of bunk. the powerful may steal an election, but they can't steal democracy.

>> eliot: before you step in the voting booth november 6th mitt romney wants to make sure you know who your boss thinks you should vote for. here's part of what romney told a june conference call with self-described small business owners sponsored by the national federation of business. "i hope you make it very clear to your employees what you believe is in the best interest of your enterprise and therefore their job and their future in the upcoming elections. and whether. >>gree with me or president obama or whatever you political view i hope, i hope you pass those along to your employees. nothing illegal about you talking to your employees about what you believe is best for the business." >> eliot: in our political world shaped by the supreme court's 2010 citizens united decision limits on employers' political speech and plos littizing to employees have been significantly reduced. among the not so call small business owners taking advantage

of the change, two of our conservative plutocrats, the koch brothers. with a pack mailed to employees urged them to vote for among others, big surprise, mitt romney. for more i'm joined by mike elk, staff writer for "in these times" who broke the news on romney's conference call advice and by political reporter mike williams. mike, is there a question in your mind about legality or propriety as it relates to this employer process liltizeing to employees? >> no. even the pro union labor laws say under citizens united, previous restrictions forbidding employers from talking to their employees about politics have been lifted. no longer is that recognized as a form of coercion as it was in the past. so it is perfectly legal in both union and corporate lawyers agree on this. >> eliot: does it trouble you nonetheless, is there something about it that you don't like

because you think it is coercion was the operative word you used there. is there something coercive by diverting nature about this kind of communication do you think? >> well, it is sort of like a guy who is a member of the mob coming to you and saying eliot i like that car you got a lot. i wouldn't want anything to happen for it. by the way i'm running for city council. that's what what's going on here. it has a chilling effect on workplace political discussion. imagine if you want to go out and campaign for obama or put an obama yard sign in your front yard and you know your boss is against obama. you're going to be careful about doing that, especially in this economy where folks can lose their jobs so easily and it is important to state that unless you're a member of a union it is legal to fire someone for their political beliefs. >> eliot: mike, i'm not so sure i agree with you. we'll take that up in a second. i understand your view. joe, you're out there in the political fray day to day. are you seeing many employers actually picking up and running with the suggestion of mitt romney to distribute their political views and if so, how

are they doing it? >> what's happening is exactly what mike said. you get a lot of employers saying we can't tell you how to vote. we don't want to tell you how to vote. we insist you exercise your vote but... in a down economy if we have more of obama's economic policies, you might see that job disappear and a lot of economic uncertainty behind that leads people to double think triple think and reconsider where they might want to go initially. by the way, if it is being said by the leader of the republican party, de facto, mitt romney, it will be echoed in small businesses across the nation,ply of especially those that he constantly cites who don't like obama care. who feel there's too much government regulation. that's practically all of them who lean republican. >> eliot: guys, i agree with you. i think from the romney republican perspective, this is an effective way to communicate because there is some sort of subrows of concern that many workers have. gee, what's bad for the business is something i better not support. having said that from the first amendment perspective i'm rigid on the first amendment issues,

i'm hesitant to limit the speech that people participate in, even if it is an employer or a union from either side of the aisle. that's why i guess i'm more sympathetic to the notion if an employer wants to make his views known, wonderful. that's first amendment activity. mike, how should they do it? where would it be proper if an employer greets his employees at the front door in the morning and says today's election day. i hope you vote and by the way just so you know, i'm voting for joe smith. is that okay? >> eliot you know, obviously you know, extortion is speech. somebody says hey if you don't do this to me -- if you don't do this, i'm going to do this to you, threaten them with some sort of financial harm, you know we recognize laws on the book that that is extortion. we put people in the mob and other places. would you argue that mafia speech related to extortion should be legalized? >> eliot: well, look, not to dig back too far into my past back when i prosecuted the mob i don't remember they made a first amendment defense. the reason is when you attach a

threat to the speech, it acquires a whole different nature. i think that's why -- i zeroed in on the word "coercion" that you raised quite properly so in the beginning. if it is done in a coercive way we feel powerful about it. if it is done in an are intive way, it is like an editorial. how you define the line is an issue. did we agree on the conceptual framework? >> i think you know, if this goes the route of where anti-union campaigns go, this is really the framework for this kind of workplace politicking is in anti-union campaigns, you have five meetings. you have an overwhelming majority of voters say they're in favor of the union and right before the election, because they've gone through the meetings with their bosses they turn against them. >> eliot: captive meeting is different thing. >> that's legalized under citizens united. an employer could hold all day meetings telling voters they

need to talk for romney and get workers up in front of their coworkers and ask them question, what their political beliefs are. that's perfectly legal under citizens united. >> eliot: joe, is it more of a subtle and neutral transmission process in terms of letters and other forms of information? >> a lot of times, it is letters, pamphlets e-mails and certain things that you as an employee, have to recognize. you're not going to ignore a letter or an e-mail from your boss. if you're talking about neutral speech or neutral informative speech, you might have an emplo irsaying mitt romney's five-point plan, looks like a good one to me. as opposed to if mitt romney doesn't get elected we're not sure the jobs will be here next year. that is sort of where the rubber meets the road as far as coercion and perhaps using the power of an employer to try to convince an employee to go the right direction. >> eliot: mike, let me take this in a slightly different direction. you reported about the fact that the koch brothers are invading

the space of their workers' social media use and finding out which of their workers, who of their workers is speaking in favor of an alternate political view and corresponding with them based upon that. that's a little creepy for lack of a better legal word. 1984 -- hey guys, now you're stepping over the line. how much of that are you seeing? and where? >> the story we saw at georgia-pacific, a lot of companies have taken facebook and twitter and started implementing these broad social media policies which the nlrb which governs labor relations has ruled against many of them. at georgia-pacific, if you say something that harms the reputation of the company including the reputation of its owners, the kochs that could be an offense. it is a gray area because if it is something related to union matters like i hate the koch's anti-union policies that is protected but if you say i hate the kochs for their fracking, that's not protected. we had a worker we quoted last year travis mckinney in a story for the nation speaking up

against the kochs. he went for a promotion. he was told by his supervisors he was too political. he talked about politics too much. they wrote it down in his evaluation which we obtained and published in the story. so i think this could start becoming a real trend when folks get fired for things they say outside of the workplace on their social media and i think -- you know, one plan i covered in washington, they went from 1200 workers to 450 because of layoffs. most folks even if the policies aren't tailor fit to take down political speech, they're not going to take the risk in this kind of economy of getting fired and having to go to court and do all of those things. >> eliot: joe is this the secret weapon of the romney campaign? are they using their foundation of small business and big business, kochs aren't small obviously to radiate out and communicate below the radar screen? >> many people saying it is a piece of not thorne but you also have the voter identification laws in several states that this is all of a piece not to eliminate the vote or not to try to convince people to go in

another direction but to actively suppress people from voting or get them to change their vote based on their interest. so it is not so secret weapon but it is one that's a part of a broader arse that will that they've been using for many months now to get people to double think and think twice about whether or not they're going to cast their vote for president obama if they choose to. >> eliot: fascinating issue of speech and coercion and what is and is not proper for an employer. fascinating issues. mike elk, staff writer for "in these times," thank you for shining light on this. joe williams, thank you for being here on the set in new york. >> in the flesh. >> eliot: a voice of sanity on the right and would you believe befn stein view finder coming up next. you're about to find out. [ male announcer ] test it. highlight the european chassis 6 speed manual, dual exhaust wide stance, clean lines

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>> still to come, strike two against fema. third, kimmel is at it again. stewart and colbert react to the

debate. when it doesn't fit anywhere else, we put it in the viewfinder. >> today we did a similar experiment but we made it even more ridiculous. today we asked people what they thought about last night's first lady debate between michelle obama and ann romney. >> who do you think won the debate between ann romney and michelle obama last night? >> i had have to say michelle obama. she did a lot better. her speech was more drafted in. you know, more finely well cut. >> the last person is going to get tough on china is that guy romney. for god's sakes romney was assembled in beijing. >> they talked about a lot of things but everybody knew that mitt had one ace in the hole. libya gate. romney and his running mate have been hammering the president over this cover-up for weeks. >> that's not what we do. that's not what i do as president. that's not what i do as

commander in chief. [ laughter ] >> who do you think won the debate last night between ann romney and michelle obama? >> definitely ann romney. i think she's very classy and a wonderful lady. >> was there anything she said during the debate in particular? >> no. i just like how she looks. >> i hate to say this on fox i hope i will be allowed to leave here alive but i don't think there's any way we can gut spending and not -- to make a meaningful difference, we're going to have to raise taxes on very, very rich people. >> as i've been counseling people, don't let these obama administration officials who basically treat women like meat, come on, vote with your lady smarts, not your lady parts. >> wow. >> have you read "50 shades of gray"? >> no. >> what do you think won the debate between ann romney and michelle obama? >> i would probably have to say michelle obama. >> how come? >> because she gets people in

like -- hits people like at the core. she has this like -- it makes people feel like some -- have sympathy for her. >> eliot: that's why we love democracy. voters are so attentive to what's going on in the world. defensive marriage act slapped down again. that's next with richard socarides.

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(vo) during the debates, it's hard to know what candidates are thinking. unless, of course yourself. with governors granholm, spitzer, and vice president gore, watch the only truly experienced presidential debate coverage. >> eliot: on friday, september 20 1996, president bill clinton signed the defensive marriage act which defined marriage for federal purposes as a union between one man and one woman but today the second u.s. court of appeals declared doma unconstitutional. the second appellate and sixth

court in a row to do so. george h.w. bush -- they declared doma institutional in the majority decision of windsor v. united states writing... >> eliot: to break down the implications of this rule, i'm joined by richard socarides former president of equality matters who served as an adviser it of lgbt issues to president clinton. you haven't stopped smiling since the decision came down. hugely important day. explain what this means and why it is so important. >> it was a important decision for a couple of reasons. first, because it is a very important federal appellate court. the second circuit is a very prestigious court. the chief judge is known as a conservative judge appointed by republican president. so you know, all of that makes for a very important decision anyway. but most importantly, this is

the first appellate court say when we look at classifications based on sexual orientation, in other words, when a law treats americans based upon their sexual orientation, that the government is going to have to come forward with a very strong reason to justify these laws. and no longer should the courts consider things like tradition or because we've already done it that way. and that if the government doesn't come forward with some strong justification, the laws will be held unconstitutional. >> eliot: let me try to compress ecan qual protection analysis to ten seconds. if the analysis need only satisfy a rational basis for the law, most laws are upheld. if they have to specify strict scrutiny, the law will be found unconstitutional. this one they said is the intermediate characterization of heightened scrutiny and very few laws, survived heightened scrutiny and a serve conservative judge said sexual

orientation needs to be tested against heightened scrutiny which means big win. >> it is a great constitutional thought but that's a little -- >> eliot: that's what i learned in one year of law school. >> with due process thrown in there. after today's decision and especially this case is now headed for the supreme court. the supreme court actually is probably going to hear this case and decide before next summer and if this ruling and its rational are upheld, what that means is any kind of classification based upon sexual orientation in any law anywhere in this country probably will not withstand a direct constitutional challenge because you won't be able to justify it any longer. >> eliot: the facts of this case, i think are emblematic of the sorts of facts that will appear in the courts. describe the sympathetic facts for the plfs but typical of what will appear in front of judges. >> you couldn't imagine a better set of facts for someone advocating on behalf of gay rights. the plaintiff is a woman named edie windsor who is 83 years old. she was married to a woman who

died and she was assessed $350,000 in estate taxes because she could not afford herself -- the estate tax federal marital deduction she would have if she was married to a man. so, in other words -- >> eliot: let me interrupt to make it simple. if a man and a woman under traditional law are married and one spouse dice then the money -- the estate goes to the other one and there's no estate tax because they're married. >> correct. >> eliot: here, the federal government said we don't recognize the marriage. it is left and you have to pay the estate tax even though they had been married. >> correct. even to make it simpler here's a situation where a citizen of this country just because she was lesbian was required to pay $350,000 in extra tax which she would not have owed had she been heterosexual. >> eliot: the facts were compelling even to judge jay --

jacobs who said they can't scrutinize this. >> there should be no justification for it. >> eliot: even under a rational basis it wouldn't survive but having the new higher standard is the end of these laws. >> yes. today, because we're talking about these issues and because they had been in the news, it doesn't seem like such a big deal. ten years ago, five years ago to get this kind of ruling from a federal appellate court especially a conservative judge, a conservative panel in this prestigious a court right below the u.s. supreme court would have been unheard of. this is the direction the law is headed and hopefully next summer, we'll have this case affirmed by the u.s. supreme court. >> eliot: if the supreme court affirms -- and this gives an easy way for justice kennedy who has been sympathetic to issues of privacy as it relates to same sex issues, it gives him an easy way to say they don't survive constitutionally. >> he would have to be our fifth vote. we need five votes right?

at least five votes. maybe we'll get six. maybe we'll get judge roberts. we're not counting on it. this would be the rational that is directly headed for -- >> eliot: i've said over and over, five is the most powerful number in the country. five justices, you can do anything, get away with anything. very very, very quickly is it still a separate issue having an affirmative right under the constitution to same-sex marriage, that issue may reach the supreme court next year. >> in proposition eight case chapped by ted and david, the issue is more broadly is there a federal constitutional right to same-sex marriage everywhere that is not the issue presented here. this is an easier issue and the supreme court may or may not reach that be also. >> eliot: only whether federal law can impose extra burdens on people rightfully married under certain state laws. >> they have decided to allow gay couples to marry. can they impose -- no longer in

new york. >> eliot: distinctions maybe only lawyers can fully grasp or care about. hugely important case. huge win. as you say this evolution of our rights is moving at warp speed. richard corn rides former -- richard socarides former president. >> it would seem things couldn't get worse for lance armstrong but they did. allstate sends a check. ok. [ voice of dennis ] silence. are you in good hands?

the more you look at mitt romney's tax plan, the more it falls apart. that's ahead. and then from hero to zero, the saga of lance armstrong dave zirin of the nation is coming up on viewpoint. used as a major talking point. (vo) the only network with real-time reaction straight from the campaigns and from viewers like you. >> now that's politially direct. >>start the night with a special live edition of "talking liberally with stephanie miller" at 7 eastern.

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